Pretoria - A Joburg resident who asked the court to overturn a judgment against him as he said he never received summons because it was delivered to the security guard at the gate of the former complex where he lived, was turned down.
The South Gauteng High Court in Joburg highlighted the fact that there is an obligation on a person who changed address to ensure that the new address is updated in accordance with the requirement for amending any agreement or contract he or she has in place, as in this case, with the bank.
Simply phoning and stating that one’s address cited in the agreement or contract has changed will not suffice, Judge Alyson Crutchfield said in her judgment.
Sipho Sibeko turned to the court after he fell behind with his car payments to Westbank, with whom he had an agreement for the financing of his car.
Summons were issued against him and the sheriff delivered the document to the domicilium address he stated in his contract with the bank – stipulating where all legal documents should be delivered.
It turned out that he no longer lived at the security complex in Sandton, which was stated as his given address in the vehicle finance contract.
As this was his given address, the sheriff handed the summons to the security guard at the gate, who signed for it. As this was legally done and as Sibeko thus did not oppose the bank’s repossession of his car, judgment by default was obtained against him.
He turned to the court to ask that the order be rescinded, as he said he no longer lived at the Sandton complex and he thus did not know about the summons. He also argued that it was not lawful to simply leave a summons with someone else – in this case the security guard at the gate.
According to Sibeko, he did phone Westbank to tell them that his address had changed. However, the contract still reflected his Sandton address as his chosen domicilium.
It had emerged that representatives of the company that acted on behalf of the bank did visit the new address, but the security guard at the new address informed them that Sibeko’s possessions were in the relevant unit, but he did not reside there.
Judge Crutchfield said she does accept that the applicant informed the bank’s representatives telephonically that he resided at an address other than the domicilium address, but this was not enough.
She said the bank’s representative was entitled to rely on the domicilium address for the purposes of service of the combined summons on the applicant.
The telephonic conversation relied upon by the applicant in respect of his change of residential address did not constitute a valid amendment to the domicilium address in terms of the agreement.
Regarding the argument that the summons was left with the security guard, the judge said the principles governing effective service on a domicilium address require that service be effected “in any manner by which in the ordinary course of the (process) would come to the attention of and be received by the intended recipient”.
In this case the security guard at the applicant’s domicilium address was a responsible employee who accepted service of the combined summons.
The judge said the security guard, being over the age of 16, was an employee of the complex and thus a competent person to legally receive the summons.
Given the difficulties of a sheriff accessing a security complex in the absence of the occupant, service at the domicilium address by way of the process of being handed to the security guard at the complex was valid service, she concluded.
Pretoria News